P L D 1988 Federal Shariat Court 42 (PLP)

GUL MUHAMMAD KHAN, C.J.‑‑‑The two appellants were charged under sections 16 and 10(2) of the Ordinance VII of 1979, by Mr. Nasiruddin A. Abro, 1st Additional Sessions Judge, Karachi East but convicted under section 6(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and sentenced, to be stoned to death at a public place, vide his order dated 7th of November, 1987. They were acquitted of the other charge under section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. Muhammad Sarwar appellant was also acquitted of another charge under section 16 of the Ordinance VII of 1979. They have challenged the order of conviction and the sentences through the present appeal.

2. The occurrence is said to have taken place in the house of the complainant, Khushi Muhammad PW 1, at Malir Colony on the 12th of June, 1986. Khushi Muhammad, lodged the report on the 8th of July, 1986, with Sarfraz Khan, A.S.I., PW

7. The allegations as made were that he was living with his wife Mst. Shahida Parveen appellant at 10/100‑G, Malir Colony, Karachi. The other appellant Muhammad Sarwar was living in 'F' Malir area and he was on visiting terms to his house as a friend. As the complainant had no issue and his wife was alone he brought his niece Mst. Kalsoom aged 14/15 years to live with them, on the 25th of May, 1986. On the 12th of June, 1986, he, as usual, went to work at 8‑00 a. m. At about 1‑00 p.m., his brother Manzoor Hussain P.W.4, came to tell him that Sarwar appellant had abducted his wife. He came home and heard the same from Kalsoom PW. She added that they had taken some luggage also. On his check, he found that a black and white 14" Sharp television, one National Radio tape‑recorder, a sewing machine, a pair of ear‑rings, a gold ring weighing two tolas and a sum of Rs.10,000 were missing. A box with a new and old clothes was also not there. A case was consequently, registered.

3. On the 5th of August, 1986, both the appellants were arrested from a house in Baghbanpura, Lahore, as stated by Sarfraz' Khan, A. S.I., PW

7. They were brought to Karachi. Mst. Shahida Parveen was medically examined on the 9th of August, 1986, by lady doctor Syeda Qamrunnisa. The case was then challaned for trial, where eight prosecution witnesses were examined. Khushi Muhammad as PW 1, Mst. Kalsoom as PW 3 and Manzoor Hussain as PW 4 repeated substantially the same facts as‑attributed to them in the F. I. R. From the others, one of them, Mst. Parveen PW is wife of Muhammad Sarwar appellant. She testified that her husband was on friendly terms with Khushi Muhammad PW, and used to visit his house in spite of her protests. Amanat P. W.6 said that he accompanied Muhammad Sarwar and a woman wearing a veil to the Railway Station in a taxi and they had no child and no luggage with them. He, however, came back when they boarded the train. He told all this to Khushi Muhammad when he enquired from him about Sarwar.

4. Hanif PW .8 stated that. no person by name of Munir or any other‑person except his family was residing in his house. The evidence of this witness was considered necessary because the stamp‑paper on which the alleged talaqnama' was written was purchased in his name with the same address as that of Hanif. The case had been investigated by. Sarfraz Khan, A.S.I., who also deposed that he arrested the accused Muhammad Sarwar and Mst. Shahida Parveen from a house at Lahore, at the pointation of the brother of the complainant (Manzoor Hussain and Umar Daraz PWs) on the 5th of August, 1986. He further stated that the accused produced the photocopy of the 'talaqnama' which was later on denied by the complainant. He produced the same in Court, as' Ex.19. He also went to check the stamp‑paper of the 'talaqnama' which was issued in the name of one Munir Ahmad.

5. Both the appellants denied having committed the Zina or taking away the golden ornaments or other articles. Their plea was .that they had lawfully married after the ,complainant divorced Mst. Shahida Parveen. Muhammad Serwar appellant further stated that. Mst. Shahida Parveen came to Lahore after she was divorced by the complainant and he married her there. They produced no defence. The facts of the case as given above would thus show that there is no direct evidence of Zina or theft. The appellants were arrested together from a house in Lahore. Their plea was that they were husband and wife and they married after Mst. Shahida Parveen had been validly divorced by Khushi Muhammad PW.

6. As noted in para one above the appellants were never charged of the offence under section 6 for a 'Hadd' offence. The offence charged was that of 'tazir' falling under sections 10 and 16 which carries less sentence. The conviction for 'Rajam' recorded without A charging for that 'Hadd' offence is thus on the face of it not maintainable and has to be set aside. It is a cardinal principle of our procedural law that a person cannot be convicted of a greater offence than the one charged though vice versa is permissible. It may also be pointed out that as repugnancy or otherwise of procedural law is beyond the jurisdiction of this Court it cannot pronounce whether the above given legal position is repugnant or in accord with the injunctions of Islam.

7. Further, the trial Court proceeded to award the Hadd sentence on the basis of confession under section 6(3). The zina liable to Hadd, however, must conform to the requirements as laid down in section 5(1), which is as under:‑ "5‑.(1) Zina is Zina liable to Hadd if‑‑ (a) it is committed by a man who is an adult and is not insane with a woman to whom he is not, and does not suspect himself to be married; or (b) it is committed by a woman who is an adult and is not insane with a man to whom she is not and does not suspect herself to be, married." The facts brought on the record, particularly, the statements of appellants show that the appellants suspected themselves to be married to each other. Mst. Shahida Parveen stated "Sir, I have married with accused Sarwar after divorce announced by the complainant. This false case is filed at the instance of my step‑mother." Muhammad Sarwar stated "Sir, complainant divorced his wife who thereafter came to Lahore where I married her. We have not committed Zina." There was thus no confession of Zina. Rather they relied on the 'talaqnama to claim they are validly married. No Hadd sentence could thus be awarded to them.

8. Even as regard the offences under sections 10 and' 16, the appellants had claimed to be lawfully married vide 'Nikahnama'. Ex.30 and had relied on the 'Talaqnama' Ex.28 to state that appellant Mst. Shahida was no longer in the bond of the complainant as his wife, at the time of the second marriage and that even the period of 'iddat' had also expired. In this view of the matter, it is submitted by the learned counsel for the appellant that it was the duty of the trial Court, in the light of the rule laid down by the Supreme Court in the case of Muhammad Azam v. Muhammad Iqbal and others (P L D 1984 SC 95)(117‑118), to summon the witnesses of the 'talaqnama' to verify the same even if it had not been done by say of the parties, before passing the order of conviction. The learned counsel father relied on a so far unreported judgment of the Sind High Court in C.P.S.137/87 Mirza Qamar Raza v. Tahira Begum P L.D 1988.Kar. 169 to say that section 7 of the Muslim Family Laws Ordinance, 1961 is repugnant to the Quran and the Sunnah of the Holy Prophet, for, a 'Talaq' pronounced orally or in writing becomes effective even without a notice given to the Chairman, Union Council, or Committee. 9: The learned counsel also took us through the cases of Ali Nawaz Gardezi v. Lt.‑Col. Muhammad Yusuf (P L D 1963 SC 51); Abdul Mannan v. Safuran Nessa (1970 SCMR 845); Muhammad Salahuddin Khan v. Muhammad Nazir Siddiqi and others (1984 SCMR 583), Ghulam Nabi v. Farrukh Latif and two others (1986 S C M R 1350) and some other judgments of the. Sind and Lahore High Courts to state that the statutory law was supreme and superseded even the Injunctions of Quran and Sunnah at that time for the reason that Objective Resolution of the Constitution was considered just a preamble and inoperative. However, the said law should not apply at a time when the Objectives Resolution is made a substantive part and effective, by a competent legislature. According to him, the law applicable now on the point involved in this case is what is declared in the case of Mirza Qamar Raza by the Sind High Court as referred to in para 8 above. The learned counsel further stated that all the above‑mentioned judgments of the Supreme Court, and the Lahore and the Sind High Courts which had taken a different view previously, should not be noticed and so mere non‑service of notice on the Chairman, as laid down in section 7 of the Family Laws Ordinance will not affect the effectiveness of Italaq'. 10: It will be of interest to note here the following observations of the Supreme Court, in the case of Ali Nawaz Gardezi (P L D 1963 S C 51) and also those of the cases following it. The position had been summoned up in the case of Ghulam Nabi v. Farrukh Latif and two others in 1986 S C M R 1350. The Supreme Court observed as under: ‑ "The contention raised in this case has already been set at rest by the following judgments of this Court. Ali Nawaz Gardezi v. Muhammad Yusuf P L D 1963 S C M R 51; Abdul Mannan v. Safuran Nessa 1970 S C M R 845, which was subsequently affirmed by this Court in Muhammad Salahuddin Khan v. Muhammad Nazir Siddiqui and others 1984 S C M R

583. In the case of Ali Nawaz Gardezi P L D 1963 SC 51 it was held that after notice of Talaq is given to the Chariman of the Union Council, does not become effective immediately, but after the passage of 90 days from the date of the pronouncement of the Talaq. In the case of Abdul Mannan 1970 S .C M R 845 it was held that Talaq does not become effective until a notice as required by section 7(i) of the Muslim Family Laws Ordinance, is sent to the Chairman of the Union Council in view of the express provisions of subsection (3) of section 7 of the said Ordinance. In the case of Muhammad Salahuddin Khan 1984 S C M R 583 above‑noted two judgments were affirmed and it was held that Talaq becomes effective only after notice thereof is given to the Chairman and the period of 90 days provided for bringing about reconciliation between parties has expired and that if a husband does not give such a notice of Talaq to the Chairman under section 7(i) of the said Ordinance it will be deemed that he has revoked the Talaq."

11. One thing very important has missed the notice of the learned Judges in the above cases. The view taken practically in all the above cases is that if no notice is sent to the Chairman the pronouncement of Talaq shall stand revoked. No time for sending the notice is stipulated. On the other hand the violation of this provision attracts criminal liability. But if the husband changes his mind immediately after the pronouncement of the Talaq and so omits to send notice to the Chairman there should be no offence committed. It means that the view that the revocation of the pronouncement is automatic in effect defects the penal clause, for it may either be presumed or represented by the husband that he never intended to press the pronouncement right from the very beginning.

12. Commenting on the observations of the Supreme Court in the leading case of Ali Nawaz Gardezi this Court in Noor Khan v. Haq Nawaz (P L D 1982 F S C 265) observed that the case of P L D 1963 SC 51 was decided on the special facts of that case where the divorce was alleged to have been given by Mr. Gardezi to his wife Renate on 5‑11‑1961 and the marriage between Renate and Col. Yusuf was solemnized on the 2nd of January, 1962, without even the expiry of 2 months. Moreover, the Supreme Court had also held at page 72 that there had been no proper divorce proved and hence P L D 1963 SC 51 was really a case decided on the basis of its peculiar facts. The following observations of the Supreme Court at page 76 para 43 are very significant:‑ "It is also fairly clear that by the 2nd of January, 1962, even the Iddat period prescribed by Islamic law for a divorced ' wife, had not yet expired." These observations of the Supreme Court clearly indicate that if 90 days had expired in that case after divorce then a different view could be possible to take in respect of the offence committed by Col. Yusuf in marrying Renate whose marriage had not been properly dissolved. This Court held in para 19 of the judgment that technicality of notice under section 7 of Muslim Family Laws Ordinance could not be made too cumbersome in certain situations. Lack of notice was thus ignored in that case for the, parties had been living as husband and wife for 10/12 years.

13. Thus, the view of this Court from 1982 has been that if two persons were living as husband and wife for a long time and it is proved that there was a pronouncement of Talaq but no notice to the Chairman, they may not be punished for zina. In the same case of Noor Khan this Court did not attach much importance to the objection that no notice had been given to the Chairman and thought it only of academic interest. The Court observed. "None of the parties was conscious of the requirements of notice under section 7 and, therefore, no one had considered it as material for the purposes of a criminal case". (See para 17 of the judgment).

14. The position, however, stands radically changed since the decision of the case of Mirza Qamar Raza in which it was held that section 7 making 3t mandatory to give notice to Chairman in every form of talaq is repugnant to Qur'an and Eunnah. The view is summoned in pars, 71(1) of the judgment of the Court as under:‑ "Providing for the effectiveness of talaq, on the receipt of notice by the Chairman is against the Injunctions of the Quran and Sunnah. Mere non‑receipt of the notice will not render the Talaq as ineffective or void. Suspending the effect of Talaq for 90 days from the date of the receipt of notice is also against the Injunction of the Holy Quran and Sunnah. A Talaq, if otherwise valid under Quran and Sunnah takes effect immediately on its pronouncement. "

15. We have gone through the judgment in Mirza Qamar Raza and appreciate that the effectiveness of the 'Talaq' cannot be subjected to the service of notice on the Chairman, The observations of the learned Judge that the reconciliation efforts ordained in Quran pertain to a period before the pronouncement of 'Talaq' or that an official or other person cannot be designated in a man‑made law to enforce and oversee the reconciliation proceedings in obedience to the dictates of Allah, are mere obiter dicta as these questions never fell to be decided. 15‑A. In fact the deficiency in the case of Mirza Qamar Raze was that no notice of 'Talaq' had been served on the wife. The position of the statutory law on the point was well‑settled by the Supreme Court and the High Court as given above. It was thus the position of Islamic Law which, had to be considered after the Objectives Resolution was made a substantive part of the Constitution and that is what the Sind Court had considered.

16. It may be noted here that the Supreme Court has held in the case of Federation of Pakistan v. Mst. Farishta P L D 1981 S C 120 that though there was a bar in the way of the Federal Shariat Court to declare repugnant Muslim Personal Law no such bar existed for the Council of Islamic Ideology. So far as the other Courts are concerned they were bound .to follow the existing law and in view of the sovereignty of the people they were obliged to give preference to the man‑made law than the Divine Law. The Supreme Court viewed the situation as under:‑ "To come nearer to the point in hand, Article 203‑B excludes from its purview examination of 'Muslim Personal Law', whereas, there is no such exclusion from the purview of the Council of Islamic Ideology. Allowing both these Articles to operate in their respective spheres, the conclusion is inevitable that all such laws which apply to Muslims in their capacity as Muslims, whether these are statutory laws, or are applied under sanction of a statute, are left to be dealt with by the Council of Islamic Ideology and are not to be gone into by Courts." "It is only in the way above highlighted, that you can find out, what is the precise law which in this respect has been excluded, because, strictly speaking 'Muslim Personal Law' remaining the pivotal law in both the Articles, the law which is then excluded from jurisdiction of Shariat Courts in that type of law which in Pakistan applies to Muslims whether by way of a statute itself or whether by or under sanction of a stature, for otherwise, the plea of excluding the same law with reference to which you are to adjudge the other laws does not fit it. 'Muslim Personal Law' in this special context, therefore, means such codified or legislated law which is being applied to Muslim residents of Pakistan as or with the denomination 'Muslim' which governs their person as such and as distinct from general law of the land which applies to everybody."

17. Here it may also be mentioned that it is outside the jurisdiction of this Court to declare a statutory law or a custom or usage having the force of law as repugnant to Quran and Sunnah if it inter alia pertains to Muslim Personal Law. Admittedly, the question of 'Talaq' falls in that field. In such a situation this Court is obliged to follow the statutory law as interpreted by the Supreme Court and in its absence that of the High Court in whose jurisdiction the matter would fall otherwise as held in the case of Mst. Farishta (P L D 1981 SC 120). We may however, make it clear that it is right of every citizen in a Muslim State to get his grievances redressed and no law can refuse such a remedy. Even no Government or legislature can reserve to itself the right to exclude from the jurisdiction of the Courts any subject though it has the right to confer such a jurisdiction on a special Court horizontally or vertically. Thus, a matter may be excluded from the jurisdiction of some Courts but it must be included in the authority of some other Courts. Consequently, the exclusion of certain subject from the jurisdiction of the Federal Shariat Court was valid but the moment Article 2‑A was introduced in the Constitution the excluded subjects stood included in the jurisdiction of the genera Courts of the country.

18. Thus, the Sind High Court earlier in M/s. Bank of Oman Ltd. v. M/s. Fast Trading Co. Ltd. (P L D 1987 Kar.404), Irshad H. Khan v. Mrs. Parveen Ijaz (P L D 1987 Kar.466) has held that it has the jurisdiction to declare a law repugnant if it was in violation of the Injunctions of Islam as given in Quran and Sunnah of the Holy Prophet, after the Objective Resolution was made substantive and effective part of the Constitution, in view of its Article 2‑A. It will be useful to reproduce the leading observation from the case of Bank of Oman Ltd., hereunder:‑ "The upshot of the entire discussion is that the Courts in Pakistan are bound by the Constitution, and any law repugnant to the Constitution is void. The principles and provisions of the Objectives Resolution, by virtue of Article 2‑A, are now part of the Constitution and justiceable. Any provision of the Constitution or law, found repugnant to them, may be declared by superior Court, as void, subject, however, to the limitations imposed by Articles 203‑A, B(c), 203‑D, 203‑G and 203‑GG of the Constitution, whereby special and specific jurisdiction has been conferred on the Federal Shariat Court to declare the law (as defined by Article 203‑B(c) read with Article 203‑G or any provision thereof, as repugnant to the Injunctions of Islam laid down in Holy Quran and Sunnah of the Holy Prophet (p. b. u. h) and that the said law or any provision thereof has been so declared by it. (Article 203‑GG)." So, the High Court in the present situation had the authority to declare any provision .of Muslim Personal Law to be repugnant to Quran and Sunnah and this Court is obliged to follow that decision.

19. The learned counsel further assailed the judgment to say that even if the trial Court had come to the conclusion that the 'Talaq' was not effective and that Mst. Shahida Parveen appellant and the complainant were husband and wife, he should have recorded proper confession or adopted the procedure laid down under section 14 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 but could not have relied on the statements made, under section 342, Cr.P.C. He also took us through the statements of the two appellants and contended that narration given therein does not amount to confession.

20. We have gone through the statements and hold that the, same could not be construed as confession unless the same were recorded as laid down by this Court in the case of Mst. Bakhan v. The State (P L D 1986 F S C 274)(281). It is held therein that if the person wants to confess his guilt, the Qazi should record his statement four times at intervals and each time the accused should be asked to out of the view of the Court and that the confession should be independent and made without any pressure, undue influence or coercion.

21. The learned counsel for the State argued that the Supreme Court in the case of Mst. Farishta (P L D 1981 SC 120(d) has held that the personal law may be enforced in its enacted form and should not be looked at from the ideal Sharia point of view. The position of this Court is clear. Wherever this Court has the jurisdiction, it tests a law at the touchstone of Injunctions of Islam, and it will ignore a law repugnant to Quran and Sunnah. On the other hand, if a particular law falls outside the pale of its authority in view of Article 203‑B(c) of the Constitution it follows the enacted law or the law laid down by other competent Court.

22. In the case in hand, the Sind High Court has declared section 7 of the Muslim Family Laws Ordinance, 1961 as repugnant to Quran and Sunnah and we are bound by the conclusion. So, in that situation the pronouncement of written ' Talaq' could not be held invalid just for the reason that no notice of it had been served on the Chairman. Hence it was the duty of the trial Court to have ascertained the genuineness of ' Talaq' by calling the witnesses and at least by verifying the thumb‑impression of Khushi Muhammad complainant. Thus, the contention raised by the learned counsel is quite valid.

23. The appellants had claimed themselves to be legally wedded husband and wife in the so‑called confession, on the support of the written divorce‑deed. They not only produced their 'Nikahnama' (Ex.30) but also placed on the record 'Talaqnama' (Ex.28) by which Khushi Muhammad complainant was alleged to have pronounced three 'Talaqs'. This 'Talaqnama' is attested by a Magistrate and also a Notary Public and other witnesses. Its verification was thus necessary. Consequently, we think that in view of the legal position stated above and also in view of the rule laid down by the Supreme Court in the case of Muhammad Azam v. Muhammad Iqbal and two others PLD 1984 S C 95 the trial Court was obliged to have verged the genuineness of the 'Talaqnama' (Ex.28). As this has not been done, the so‑called confession is not operative. The result is that the conviction and the sentences awarded were without any factual or legal basis.

24. In any case, if the trial Court had come to the conclusion that the complainant and Mat. Shahida Parveen are husband and wife, he should have either adopted the procedure laid down in section 14 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 or in the alternative should have asked the complainant to produce four witnesses as provided in section 6 or section 14 of the Ordinance VIII of 1979. If the case was based on confession, it should have been recorded in accordance with the rule referred to above.

25. In view of the above, we think that the order of the trial Court is not supported by law and the same is, therefore, set aside. The case is sent back to the learned Sessions Judge, who will either try it himself or entrust it to another Judge. It will now be proceeded with in accordance with the law and the observations made above, wherever applicable. In case if the appellants confess the commission of Zina, he should record the confession in accord with the rule as laid down in P L D 1986 FSC 274(281). On the other hand, if they deny and rely on divorce‑deed, then he must summon the witnesses and also verify the thumb‑impression stated to be of Khushi Muhammad. He shall also take into consideration the other defences if any raised, as well as the fact of the delay in the F.I.R., and decide the case within a period of three months from the date of the receipt of this order. We have already, by a short order, allowed the appeal and directed the appellants to be released on bail; on their furnishing bail bonds in the sum of Rs.10,000 (Rupees ten thousand) each with one surety each in the like amount to the satisfaction of the .trial Court.

26. We have taken great care to avoid 'any comments on the merit of the case lest it might prejudice the case of the one or the other side. However, if there appears to be any such impression it is not intended and it should not influence the mind of the trial Court. M.B.A./387/F.Sh Case remanded.